It is enormously frustrating to someone who is awarded the former marital home in the divorce but can’t refinance or sell it because the title (title to real estate is evidenced by a deed) is not in their name alone.

There are three types of deeds to transfer real property but a “quitclaim” deed is almost exclusively used in divorce situations. A quitclaim deed transfers whatever interest one person has to the other person, without making any binding legal promises about the property: they are not representing that there are no other people who claim any interest in the property, whether ownership, access, or as security for a debt.  A quitclaim deed essentially says “any interest I have in this property is yours.” The person signing a quitclaim deed is extremely unlikely to incur an adverse consequence as a result (we lawyers don’t like to say always or never).

The easiest and least expensive option is to prepare a quitclaim deed and present it to your former spouse. It is essential that the legal description comes from the last recorded deed for the property and be exactly the same, every word, every space, every capitalization, every symbol. The information on the real estate assessment that you get from St. Louis County is NOT the legal description.

It is extremely rare, but I had a quitclaim deed that we tried to record because of a comma instead of a semi-colon in the middle of a 50-line legal description (a typical legal description for a home in a subdivision is 2 or 3 lines).  Because my client’s former husband had moved to the monastery in a remote mountain area of China and was unreachable, we had to prepare and file a scrivener’s affidavit, with a resulting delay of 45 days and the loss of a buyer to my client.

If your former spouse will not sign a deed that has been presented to them, there are two possible legal actions to take: a motion for contempt or a motion to divest title.  Either action is probably best handled by an attorney.

A motion for contempt is essentially a statement to the judge that the other party is not doing what the court ordered and should be punished. The person filing the contempt needs to show that they tried to secure the deed (they asked that it be signed), the person who needs to sign the deed knows that they must sign the deed (either a copy of the divorce papers signed by that person or proof that they received a copy of the divorce judgment) and that the person has had the opportunity to sign the deed (they are not in a coma or at the South Pole).  Most often, if the non-compliant party appears in court, the judge will try to convince them to sign and if they will not, will give them a deadline to sign or pay a fine or go to jail.  Some judges will appoint a third party to sign on their behalf.  The authority of the court to appoint an agent to sign the deed is questionable, and the chances of incarceration are virtually zero.  Contempt is generally a good idea to give the other party the incentive to act.  Reading that someone is asking the judge to throw you in jail can be a great motivator.

A much better – and much less well-known – legal action is a Motion to Divest Title.  This is a legal action specifically designed for this situation.